Affirmative Action Works When It Does Not Adversely Affect Freedom Or Equal Opportunity, Meritocracy Or Pursuit Of Excellence Or Fighting Corruption

We are often told that hard work will bring success and change destiny. The underlying assumption is that outcome is directly related to efforts. The reality is however much more complicated than that. Parents all know that how important it is to give their children a good head start. Environment plays a tremendous role in our life chance. Social scientists call it structural constraints, which individuals may not be able to overcome on their alone, no matter how hard they work. Competitive edges are inheritable and accumulative. How likely is a kid from inland Sarawak with no internet access and no one in family ever attended university to beat Subang Jaya professionals’ kids growing up with ipads to do medicine or architecture in top university? To positively discriminate in favour of marginalised groups so that they may have a more level playing field to compete is Affirmative Action.

There are at least two broad arguments for Affirmative Action.

The first is based on enlightened self-interest. If the marginalised in the society are forever marginalised, they may choose to disrupt the entire socio-political and economic system. It may take the form of a revolution or a riot. But, even if it is a just an electoral revolt, it can be no less disastrous. Look at the Brexit in the UK. Look at the election of President Donald Trump in the US. Besides cultural factors, the unexpected outcomes were driven much by economic discontent. People who stand to lose or gain little from globalisation voted in the hope to halt the loss of jobs and to reverse to the good old days where they didn’t have to face competition from people culturally different from them, home or abroad.

The second argument for Affirmative Action is rooted in solidarity. The idea that we should care for our fellow humans and ensure that everyone can live a dignified and fulfilled life. And it is morally wrong that some members of society are forever condemned in poverty or backwardness, no matter what the causes are.

As the idea of human rights grow, we recognise more forms of marginalisation beyond poverty and more categorisation warranting affirmative action beyond ethnicity. Today, a common form of affirmative action measure implemented or advocated for is the minimum 30% target for women in decision-making positions. Here in Penang, we are proud to have women holding the positions of state legal advisor, secretary of state legislative assembly and presidents of both city and municipal councils. At the Penang legislative assembly, women make up 15%, higher than 10.8% in the federal parliament but we are of course not complacent -- We hope to achieve soon the 30% target.

Before we go further on Affirmative Action, it is important to remember this is not the only method to correct inequality. The alternative – sometime also complement to Affirmative Action -- is often forgotten is the welfare state, where social goods like health, education, transportation and housing are provided cheaply and inclusively so that the poor may escape the poverty trap.

We wish to transform Penang into an entrepreneurial and welfare state, where we can enjoy both economic advancement and prosperity, without the poor getting poorer and be left behind. Penang has amongst the highest GDP per capita in the country and we also implement a form of universal basic income. We top up the household income of any families who receive less than RM790 per month.

The debates on affirmative action unfortunately has been stifled by two obstacles.

First, positions on affirmative action are often almost by default linked to one’s ethno-religious category. When the issue is raised, it is common for all sides to trade claims of marginalisation and complaints of discrimination by others. While the official justification for affirmative action in Malaysia is often based on preservation of social harmony and political stability, some quarters deliberately frame it as a permanent nativist privilege, making it even less universal.

Second, the myth that Malaysia is unique and not comparable to other countries. This myth prevents cross-national learning. The realities are (1) most countries in the world are actually plural society and Malaysia is not the most complicated one; (2) affirmative action is applied in many countries – not only affirmative action for women and disabled people is commonly found, even identity-based affirmative action can be found from countries as diverse as India, South Africa, United States, Sri Lanka and China.

We at the Penang Govermment are social democrats. We believe in solidarity. We believe in inclusion. Hence, we believe in affirmative action. We are sick of egregious corruption or crony capitalism disguised as affirmative action. We want affirmative action to work, not to be abused. We want affirmative action to empower, not to control, citizens. We need new lens to look at affirmative action, lens that are free from our communal bias and see empowerment of all marginalised members of our society a national agenda, not communal agenda of Malays, Chinese, Indians, Sabahans or Sarawakians. We need new languages like human rights to articulate and frame issues related to affirmative action to break free from the communal paradigm.

Finally affirmative action should not be an obstacle towards freedom or equal opportunity or meritocracy or establishing integrity or pursuit of excellence. If it does, then affirmative action has failed – that is not affirmative action but inflicting punishment or discrimination. The Scandinavian countries are good examples of affirmative action helping the poor, weak, dispossessed and marginalised without affecting freedom or equal opportunity, meritocracy or pursuit of excellence or fighting corruption.

It is in this light I would like to express my utmost gratitude to Judge Navi Pillay for accepting our invitation to share with us here her insights on affirmative action and human rights, drawing from experiences in her home nation South Africa and other jurisdictions. Before serving as the United Nations High Commissioner for Human Rights from 2008 – 2014, she worked as a lawyer, and subsequently was appointed as a High Court judge.

I am sure we will all be enlightened by Judge Pillay’s lecture and the panel discussion with her and our three distinguished panellists. When do we need affirmative action? When should affirmative action give way to more effective or inclusive policies? What are the policy domains suitable for affirmative action? Besides ethnicity and gender, what categorisation may be suitable to introduce affirmative action?

For friends who remain sceptical of universal solidarity, allow me to repeat US President Roosevelt’s reminder that we are all inter-dependent, ““This country will not be a permanently good place for any of us to live in unless we make it a reasonably good place for all of us to live in.”